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K.M.P. Parameswaran Nambudripad and ors. Vs. K.M.S. Sankaran Nambudripad and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1915Mad723; 25Ind.Cas.755
AppellantK.M.P. Parameswaran Nambudripad and ors.
RespondentK.M.S. Sankaran Nambudripad and ors.
Cases ReferredIn Meloth Kannan Nair v. Kodath Kammaran Nair
Excerpt:
limitation act (ix of 1908), section 7 - 'discharge'--meaning of malabar tarwad--karnavan's act impugned--right to give discharge. - .....the appellants and 15 other members of their tarwad for a declaration that the karar executed the plaintiffs' karnavan, the 1st defendant, in favour of the 2nd defendant in 1899 acknowledging the right of the 2nd defendant's tarwad to a half share in the uraima right in the plaint devaswom, was obtained by the 2nd defend ant by fraud, etc., and that the said agreement is not binding upon the plaintiffs' tarwad. the plaint also contained a prayer for an injunction restraining the 2nd defendant and the members of his tarwad from interfering with the devaswom affairs. the suit was brought in 1910.2. the lower appellate court dismissed the plaintiffs' suit on three grounds: (a) that the suit is opposed to the provisions of section 42 of the specific relief act, i of 1877; (6) that the.....
Judgment:

Sadasiva Aiyar, J.

1. Plaintiffs Nos. 2 to 5 are the appellants. The suit was brought by the appellants and 15 other members of their tarwad for a declaration that the karar executed the plaintiffs' karnavan, the 1st defendant, in favour of the 2nd defendant in 1899 acknowledging the right of the 2nd defendant's tarwad to a half share in the uraima right in the plaint devaswom, was obtained by the 2nd defend ant by fraud, etc., and that the said agreement is not binding upon the plaintiffs' tarwad. The plaint also contained a prayer for an injunction restraining the 2nd defendant and the members of his tarwad from interfering with the devaswom affairs. The suit was brought in 1910.

2. The lower Appellate Court dismissed the plaintiffs' suit on three grounds: (a) that the suit is opposed to the provisions of Section 42 of the Specific Relief Act, I of 1877; (6) that the plaintiffs could not be allowed to amend the plaint so as to bring the prayers in the plaint into conformity with Section 42 of the Specific Relief Act; and (c) that the suit is barred by limitation. It is unnecessary to go into the first two questions for the purpose of the decision of this second appeal. I might, however, remark that under the new Civil Procedure Code, Act V of 1908, Order VI, Rule 17, all amendments 'shall be made' as may be necessary for the purpose of determining the real question in controversy between the parties; and I think that the cases decided before the enactment of the new Civil Procedure Code, ruling that it is not desirable to allow amendments at a very late stage or so as to oust the jurisdiction of the Court in which the suit was instituted, are no longer of much value on the question of the amendment of plaints.

3. On the question of limitation I think that the lower Appellate Court has taken the right view. This suit was brought more than ten years after the date of the agreement, Exhibit A, and the reliefs claimed in the plaint bring this suit under one or more of the following heads : (a) a suit to cancel or set aside an instrument (Article 91, Limitation Act of 1908), (b) a suit for an injunction, (c) a suit for a declaration, (d) a suit for which no period of limitation is expressly provided for. Under whichever head the suit is placed, the limitation is either three years under Article 91 or six years under Article 120. The suit is, therefore, clearly barred unless the plaintiffs could take advantage of the saving provisions contained in Sections 6 or 7 of the Limitation Act, 1908, corresponding to Sections 7 and 8 of the old Limitation Act, 1877. It is admitted that Section 6 (old Section 7) does not apply, because all the plaintiffs are not minors. Hence Section 7 (old Section 8) is relied upon.

4. Section 7 is as follows: 'Where one of several persons jointly entitled to institute a suit or make an application for the execution of a decree is under any such disability, and a discharge can be given without the concurrence of such person, time will run against them all but, where no such discharge can be given, time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased.' It has been settled by a long course of decisions that the term discharge' in this section 'is not confined to discharge of a pecuniary liability of the defendant, but includes release of rights in immoveable property and other rights which may belong to the plaintiffs. Now in such a case as the present, who are the several persons jointly entitled to institute a suit' for the reliefs now claimed? It is clear that this suit is brought, not on behalf of the plaintiffs individually, but on be of the whole tarwad including the karnavan, the 1st defendant. The 'suit being based upon fraud, misrepresentation and undue influence, the 1st defendant himself could have brought the suit on behalf of the tarwad and he is clearly one of the several persons jointly entitled to institute this suit. I shall assume that the senior adult anandravan does not stand in the position of an elder brother in a Hindu family (who is the de jure manager of the family affairs after the father's death) and can give valid discharges in certain circumstances so as to be binding on his minor younger brothers. See Doraisawmi Sirumadan v. Nondisami Saluvan 21 Ind. Cas. 410 : 14 M.L.T. 401 : 25 M.L.J. 405. There is, however, the karnavan himself who is jointly entitled to institute a suit, could always give a valid discharge under proper conditions and hence I am inclined to hold that the 2nd clause of Section 7 of the Limitation Act which comes into force only where no discharge can be given by any of the persons jointly entitled to institute a suit, cannot be relied upon by the appellants in this case. The appellants' learned Vakil (Mr. T. R. Ramachandra Aiyar) quoted the decision of Alinisa Bibi v. Abdul Kader Saheb 25 M. as in his favour. In that case 0, one of four partners, died in 1891 and the partnership became dissolved-In 1898 the legal representatives of 0 brought the suit against the surviving partners (and others) for an account and for a share of the profits of the dissolved partnership. One of the legal representatives of C (the 3rd plaintiff in the case) was a minor. It was held that the suit was not barred as against any of the plaintiffs, as C was a Mussalman and his two adult heirs could not give a valid discharge on behalf of the 3rd plaintiff (minor) and hence Section 8 of the old Limitation Act, 1877, (present Section 7) saved the bar of limitation in favour of all the plaintiffs. The decision in that case seems to me, however, not to be helpful to the plaintiffs in this case, for one of the persons jointly entitled to bring this suit, namely, the 1st defendant, could give a valid discharge; whereas in Ahinsa Bibi v. Abdul Kader Saheb 25 M. neither of the two adult plaintiffs who brought that suit could have given a valid discharge.

5. If the cause of action to set aside the karnavan's alienation arose out of the fraud, of the karnavan directed by him against the tarwad, then the tarwad, by the very nature of the karnavan's act, cannot (it may be argued) be any longer represented by that karnavan so far as steps necessary to. be taken to get rid of the effect of his said action are concerned and hence he cannot be said by the necessities of the case and under those peculiar circumstances to be entitled to grant a discharge On behalf of the tarwad in respect of such rights. But the present is not such a case, the plaint alleging not any fraud perpetrated by the karnavan as the cause of action but fraud, etc., directed against him and against the tarwad represented by him (see paragraphs 5 and 6 of the plaint).

6. Even if I am going too far in holding this view that the karnavan himself continues to represent the tarwad as regards the power to give a discharge in connection with a claim arising out of his unauthorised acts, it seems to me clear that the karnavan acting with all the adult male members of the family must fully represent the tarwad in respect of such power of discharge. That all the adult members fully represent the tarwad, in the matter of the family karars cannot be disputed. There is even a presumption that the karnavan and the senior anandravan fully represent the tarwad in respect of alienations of the tarwad properties. In Meloth Kannan Nair v. Kodath Kammaran Nair 22 Ind. Cas. 609 : 1 L.W. 102 : (1914) M.W.N. 231 it was held that the consent of the karnavan and of the senior anandravan in age is very strong evidence that the tarwad as a whole gave a valid consent. In the, present case, as the karnavan and all the, adult members of the family fully represent the tarwad including the minor members for all purposes, they fully represented the tarwad for the purpose of giving a discharge also and the latter part of Section 7 of the Limitation Act, 1908, clearly applies and this, suit was rightly held by the, lower Appellate Court to be barred by limitation.

7. I would, therefore, dismiss the second appeal with costs.

Napier, J.

8. I concur with my learned brother that the suit was rightly held to be barred by limitation, the circumstances being those referred to in the latter part of his judgment, but with great respect to his far wider experience, I should hesitate to hold that a karnavan whose contract was sought to be impeached could by himself be held to be able to give a discharge within the meaning of the section.


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